358 F.

3d 216

UNITED STATES of America, Appellee,

v.
John MITCHELL, Defendant-Appellant.
Docket No. 03-1385.

United States Court of Appeals, Second Circuit.

Argued: December 15, 2003.
Decided: February 11, 2004.

Paul J. Van De Graaf, Chief, Criminal Division, Burlington, Vermont

(Peter W. Hall, United States Attorney for the District of Vermont, David
V. Kirby, First Assistant United States Attorney, Burlington, Vermont, on
the brief), for Appellee.
David C. Sleigh, St. Johnsbury, Vermont (Sleigh & Williams, St.
Johnsbury, Vermont, on the brief), for Defendant-Appellant.
Before: WALKER, Chief Judge, KEARSE and CABRANES, Circuit
Judges.
PER CURIAM:

Defendant John Mitchell, who, with co-defendant David Moodie, robbed a

bank on August 6, 2001, appeals from a judgment of conviction entered in the
United States District Court for the District of Vermont, William K. Sessions,
III, Chief Judge, following his plea of guilty to four counts of a five-count
superseding indictment, to wit, bank robbery, in violation of 18 U.S.C. 2113
(count 3), interstate transportation of a stolen vehicle, in violation of 18 U.S.C.
2312 (count 4), interstate transportation of stolen firearms, in violation of 18
U.S.C. 922(i) (count 5), and brandishing a firearm during the robbery, in
violation of 18 U.S.C. 924(c) (count 2). Pursuant to the Sentencing
Guidelines ("Guidelines"), Mitchell was sentenced to a total of 176 months'
imprisonment, comprising 92 months on counts 3-5, followed by 84 months,
i.e., the mandatory seven-year consecutive sentence required by 18 U.S.C.
924(c)(1)(A)(ii), on count 2. On appeal, Mitchell contends that because
Moodie was not required to plead guilty to violating 924(c), and hence was

not punishable under that section, the district court should have granted
Mitchell a downward departure to make his sentence comparable to the
sentence applicable to Moodie. Finding no foundation for Mitchell's contention
that the district court's refusal to depart was based on an error of law, we
dismiss the appeal for lack of appellate jurisdiction. We write, however, to
correct an error of law, reflected in the sentencing judge's comments, that was
potentially to Mitchell's benefit.
2

The respective roles of Mitchell and Moodie during the robbery are undisputed.
Moodie brandished a rifle at the bank's tellers while Mitchell vaulted the
counter and took money from the cash drawers. The two, with a third
confederate, Eric Pullen, made off with several thousand dollars. Mitchell was
arrested within weeks of the robbery; he promptly confessed to his participation
in the robbery and implicated Moodie in that crime and others. The eventual
indictment charged Mitchell and Moodie with the four counts on which
Mitchell was eventually convicted, described above, plus one count of
conspiring to brandish a firearm during the robbery, in violation of 18 U.S.C.
924(o) (count 1).

Moodie did not confess and initially sought to go to trial. The government
asked Mitchell's attorney whether Mitchell would agree to testify against
Moodie if Moodie were tried. Mitchell declined. In August 2002, Moodie
entered into a plea agreement with the government in which he pleaded guilty
only to counts 3-5 of the indictment, i.e., the counts not alleging violation of, or
conspiracy to violate, 924(c). In December 2002, the district court sentenced
Moodie to, inter alia, a prison term of 96 months, in an upward departure based
on factors other than the fact that he might have been convicted under 924(c).
See United States v. Moodie, No. 02-1772, 78 Fed.Appx. 153, 2003 WL
22348903 (2d Cir. Oct.15, 2003) (affirming by summary order).

In October 2002, Mitchell entered into a plea agreement with the government in
which he agreed to plead guilty to four counts: counts 3-5 plus count 2, the
substantive 924(c) count. In light of various offense-level adjustments, the
imprisonment range prescribed by the Guidelines on counts 3-5 for Mitchell
was 92-115 months; with respect to count 2, the court was required by 924(c)
(1)(A)(ii) to impose a consecutive term of seven years' imprisonment, making
the minimum prison term prescribed for Mitchell 176 months.

Mitchell moved for a downward departure, arguing that his sentence should not
differ radically from the 96-month prison term imposed on Moodie and that
there was no rational basis for the government's having allowed Moodie not to
plead guilty to a 924(c) offense, to which Mitchell was required to plead,

thereby creating the substantial sentencing disparity. At the sentencing hearing,

the government stated that its decision not to insist on Moodie's pleading guilty
to a 924(c) offense was based in part on the government's assessment of "the
kind of roles that [Mitchell and Moodie] played in this crime spree" (Sentencing
Hearing Transcript, June 16, 2003 ("Tr."), at 14) and in part on its assessment
of the strength of the proof it could present against Moodie at a trial. The
Assistant United States Attorney ("AUSA") stated that, based on the testimony
of Pullen and on other evidence, the government viewed Mitchell as the more
culpable of the two. (See Tr. 14 ("Mr. Mitchell's participation with Mr. Moody
[sic] ... led to Mr. Moody [sic] being in the place that he was on August 6th,
2001.").) In addition, while noting that the government believed it would have
prevailed if Moodie were tried, the AUSA stated that "the evidence against Mr.
Moody [sic] was less than the evidence against Mr. Mitchell...." (Tr. 13.) The
AUSA also pointed out that the government's case against Moodie would have
been stronger if Mitchell had not refused to testify, and that if Mitchell had been
willing to testify, as the government requested, he could have bargained for
more favorable treatment in his own plea agreement. (See Tr. 14-15.)
6

As detailed below, the district court declined to grant Mitchell a downward

departure to eliminate the disparity between his sentence and the sentence
imposed on Moodie, and Mitchell has appealed. We dismiss the appeal for lack
of appellate jurisdiction.

It is well established that "[a] defendant's contention that the sentencing court
should have granted a downward departure is ordinarily not a proper matter for
appeal, ... unless the refusal to depart... was based on the court's erroneous view
of the extent of its departure authority." United States v. Labeille-Soto, 163 F.3d
93, 100 (2d Cir.1998). Mitchell attempts to bring himself within this principle
by asserting that the district court denied his motion because it erroneously
believed it had no authority to depart. (See Mitchell brief on appeal at 9-10
("The court, relying on Tejada [sic; United States v. Tejeda, 146 F.3d 84 (2d
Cir. 1998)], felt the disparity between co-defendants could not form the basis of
a downward departure.").) However, the record squarely contradicts this
contention.

In denying Mitchell's departure motion, the district court stated, "Now, in

regard to the motion for downward departure based upon the disparity, I don't
read the Tejeda case as indicating that I have no authority to depart. Clearly I
could depart." (Tr. 16 (emphases added).) The court concluded that "even
though the Court has the power to depart, based upon disparity, and other
factors, or disparity unto itself, if it's really extraordinary, I don't think it's
appropriate in this case." (Tr. 18 (emphasis added).) Because a district court's

exercise of its assumed discretion to deny a departure is not appealable, we

dismiss Mitchell's appeal for lack of appellate jurisdiction.
9

We are constrained to note, however, that the district court erred insofar as it
stated that it had authority to depart based on differences between the sentences
applicable to Mitchell and Moodie, given that that disparity resulted from the
plea bargaining process and was not unconstitutional. The lack of authority to
depart in such a circumstance is well established under the principles, based on
longstanding Supreme Court precedent, discussed in United States v. Stanley,
928 F.2d 575 (2d Cir.1991) (reversing departure designed to reduce disparity
between sentence applicable to a defendant who was charged under 924(c)
because he chose to go to trial and sentences applicable to defendants not so
charged because they pleaded guilty), and United States v. Bonnet-Grullon,
212 F.3d 692, 706-08 (2d Cir.2000) (affirming refusal to depart, for lack of
authority, to reduce disparity between defendants in different judicial districts
who were subject to different penalty levels because of prosecutorial decisions
as to what offense to charge in order to induce a plea of guilty).

10

In Bonnet-Grullon, we noted that "[i]t is well established that the decision as to

what federal charges to bring against any given suspect is within the province
of the Executive Branch of the government." 212 F.3d at 701; see also id. at
707 (Guidelines "policy statements and comments give express recognition to
the fundamental premise that prosecutors have broad discretion as to which
charges to bring and which to omit").

11

This broad discretion rests largely on the recognition that the decision to
prosecute is particularly ill-suited to judicial review. Such factors as the
strength of the case, the prosecution's general deterrence value, the
Government's enforcement priorities, and the case's relationship to the
Government's overall enforcement plan are not readily susceptible to the kind
of analysis the courts are competent to undertake.

12

Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d 547
(1985). In Bonnet-Grullon, we observed that "[p]rosecutorial discretion in the
decision as to which charges to bring and which to forgo, resting on
assessments of the factors discussed in Wayte, e.g., the government's priorities
and overall enforcement plan, is also integral to the plea-bargaining process."
212 F.3d at 701.

13

In Stanley, this Court considered "whether the sentencing judge may depart
downward from the guideline range because of a disparity in sentence between

defendants who have engaged in similar conduct but are charged with different
offenses as a result of plea-bargaining decisions by the prosecutor." 928 F.2d at
576. The district court departed downward "because of what he perceived as an
unwarranted disparity in sentences caused by the use of 924(c) in plea
negotiations," id. at 576, to wit, that the United States Attorney "often charges
defendants who refuse to plead guilty with 924(c) if the section is applicable,
but allows similarly situated defendants who plead guilty to avoid 924(c)
charges, i.e., it `is not unusual' that 924(c) is used `as a chip in plea
bargaining,'" id. at 579.
14

This Court reversed the departure, noting that so long as the government's
choices of what charges to press against which defendants are not based on
constitutionally impermissible standards such as "`race, religion, or other
arbitrary classification,'" the government's "`desire to induce a guilty plea' ... is
not an `unjustifiable standard' of selection in enforcement." Id. at 581 (quoting
Bordenkircher v. Hayes, 434 U.S. 357, 364-65, 98 S.Ct. 663, 54 L.Ed.2d 604
(1978)). We concluded that where

15

the only "mitigating circumstance" identified [wa]s the fact that defendants
who engaged in similar conduct but agreed to plead guilty to lesser charges
received less punishment than Stanley would receive,.... [and where there was]
no viable claim before us of misconduct by the prosecutor or coercion of the
defendant,

16

the imposition of the mandatory sentence required for a 924(c) conviction

does not create an unwarranted disparity with the sentences of those not so
convicted. Stanley, 928 F.2d at 582-83.

17

The present case differs from Stanley principally in that in Stanley, the
preferential treatment consisted of not charging compliant defendants under
924(c), whereas here, a 924(c) charge was brought against Moodie and was
dropped. Where the government has discretion to bring or not to bring diverse
charges against different defendants for the purpose of plea bargaining, it also
has discretion to pursue or not to pursue different charges, once brought, against
different defendants for that purpose. We see no authority for the proposition
that the government's permissible agreement to drop a given count against one
defendant empowers the court to grant a downward departure to a codefendant
who agrees to plead guilty to that count.

18

With respect to the events and plea agreements at issue here, Mitchell has not
pointed to anything in the record to indicate that the government's decision to

allow Moodie to plead guilty only to counts 3-5, while insisting that Mitchell
plead guilty to count 2 as well as counts 3-5, was based on any invidious
standard. To the contrary, the record supports the government's contention that
testimony by Pullen portrayed Mitchell, both in general and in several segments
of the crime spree, as the leader of the group. (See, e.g., United States v.
Moodie, # 01-CR-82, Sentencing Hearing, December 17, 2002, at 12, 17-18,
20-23.) Nor is there any dispute that the government's trial evidence against
Moodie would have lacked testimony by Mitchell, who refused to testify, and
lacked any confession by Moodie, whereas at a trial of Mitchell, the
government could have presented not only testimonial and physical evidence
but also "[Mitchell's] complete and `Mirandized' confession," making
Mitchell's conviction "a foregone conclusion" (Mitchell brief on appeal at 6 n.
1). We conclude that Mitchell made no showing that would have authorized the
district court to interfere with the government's discretion as to what charges to
pursue and what charges to abandon for the purpose of persuading Moodie and
Mitchell to plead guilty.
19

Accordingly, even if the district court had denied Mitchell's motion for a
downward departure based on a sentencing disparity on the ground that it had
no authority to grant such a motion, we could have affirmed under the authority
of Stanley and Bonnet-Grullon. The court's statement that it had authority to
depart for "disparity unto itself, if it's really extraordinary" was correct insofar
as it meant that unconstitutional disparities could support downward
departures. But to the extent that permissible prosecutorial policy and practice
were the bases of Mitchell's motion, it would be error under Stanley and
Bonnet-Grullon for a district court to state that it had any authority to depart
downwardly to correct resulting disparities. As such an error was not the basis
for the court's denial of Mitchell's departure motion, we dismiss the appeal for
lack of appellate jurisdiction.